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Cite as: [2018] EWHC 1297 (QB)

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Neutral Citation Number: [2018] EWHC 1297 (QB)
County Court Claim Nos. B53YJ5050 & B24YM842

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
5 June 2018

B e f o r e :

MASTER DAVISON
____________________

Between:
WAYNE BASS
Claimant

- and –


MINISTRY OF DEFENCE
Defendant

And between :


MARK TAYLOR
Claimant

- and –


MINISTRY OF DEFENCE
Defendant

____________________

Mr Theo Huckle QC & Mr Paul Kilcoyne (instructed by Hilary Meredith Solicitors) for the Claimants
Mr Adam Heppinstall (instructed by Government Legal Department) for the Defendant

Hearing date: 14 May 2018

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    Master Davison:

    Introduction

  1. This is my judgment on applications brought by the claimants under section 41 of the County Courts Act 1984 ("CCA 1984") for orders transferring their claims from the Central London County Court to the High Court. Such applications are usually straightforward; indeed, they are usually dealt with by consent. But these raise issues concerning the interplay of sections 41 and 42 of the CCA 1984 and the correct interpretation of CPR r 30.3(3). They also touch more generally on the relationship between judges of the High Court and the County Court.
  2. The claimants were formerly serving soldiers. Mr Bass was a private in the Mercian Regiment. Mr Taylor was a combat medical technician. Both were deployed in Afghanistan and both contracted Q fever disease allegedly caused, as I understand it, by infection with a bacterium found in grazing animals and which can be acquired by humans. In the wake of the infections, both claimants developed Q Fever Chronic Fatigue Syndrome. For both, the consequences have been serious and I was told that the claimants' experienced legal team values the claims at in excess of £1 million – the biggest items being their loss of earnings and their needs for ongoing care. Mr Bass's claim was issued in the County Court on 12 March 2015 and the file handler at Hilary Meredith solicitors stated the value on the Claim Form as "more than £300,000". Mr Taylor's claim was issued in the County Court on 22 June 2015. The value was stated to be more than £50,000 but not more than £100,000". As the prognosis for their conditions has become clearer, those figures (particularly for Mr Taylor) seem too low. The basis of liability is said to be that the MOD did not do enough to provide appropriate prophylactic treatment for soldiers in Afghanistan. In Mr Taylor's case, there are additional allegation regarding his treatment when he acquired Q Fever. Liability is firmly in issue and there are complex issues regarding combat immunity and the application in Afghanistan of the relevant "six pack" Regulations relating to health and safety.
  3. Mr Bass's case is at fairly advanced stage. His case is assigned to Her Honour Judge Baucher for case management and trial. On 7 November 2016 the judge ordered a split trial. Her directions included a full direction concerning disclosure relevant to liability. That was to be done by 23 January 2017. On 9 January 2017, the Minister of State for the Armed Forces issued a Public Interest Immunity Certificate in respect of certain of the disclosure documents. A few were withheld in full. Others were redacted. He certified that serious harm to the public interest would arise if the MOD was required to disclose sensitive information under two categories: (1) International Relations, where documents originated with the US or NATO and thus disclosure would have a negative impact on the UK's relations with these partners and (2) National Security, where documents contained information the disclosure of which would seriously compromise the operational effectiveness of the armed forces and the ability of those forces to protect UK citizens from a range of threats. The mechanism to challenge that certificate was for the claimant to issue an application under CPR r 31.19(5) for "the court to decide whether [the] claim [to PII] should be upheld". No such application has yet been issued. Nevertheless, I was told that an application was contemplated. Subject to that and subject to any further directions that the judge may give at the further CMC scheduled for 28 June 2018, the case will be listed for trial in the near future.
  4. Disclosure in Mr Taylor's case took place in March 2017. The documents were redacted identically to those in Mr Bass's case. I was told that he too intends to issue an application under CPR r 31.19(5). On 12 September 2017, he issued an application under section 42 of the CCA 1984 to transfer his case up to the High Court. The application came before DJ Fine at a CCMC on 9 January 2018. She refused to transfer. I have been supplied with a transcript of her judgment. Her decision is the subject of an appeal, which was filed on 29 January 2018. The appeal papers were placed before HHJ Baucher. She was made aware of the fact that the claimant intended to issue a parallel application to the High Court under section 41 of the CCA 1984. She directed that the application for permission and, if successful, the appeal itself should be listed before the Designated Civil Judge, HHJ Dight CBE, but that the appeal was to be stayed "pending the appellant's section 41 transfer application".
  5. Mr Taylor's application for transfer to the High Court and that of Mr Bass were issued on 13 April 2018.
  6. The applications rest on two bases:
  7. i) That transfer is mandatory under CPR r 30.3(3) which states that "where in proceedings in the County Court the court considers that there is a real possibility that a party would in the course of the proceedings be required to disclose material the disclosure of which would be damaging to the interests of national security, the court must transfer the proceedings to the High Court". This was said to be such a case.

    ii) That the discretionary factors listed in CPR r 30.3(2) (financial value, complexity etc) favour transfer.

  8. The MOD resist transfer. Taken shortly, the MOD's position is that there is no real possibility of it being required to disclose national security documents, that the case can be tried perfectly satisfactorily in the Central London County Court and, in Mr Taylor's case, that his application is an abuse of the process because it simply replicates the application before DJ Fine, which she refused. Any challenge to that decision had to be by way of appeal – not by parallel application in the High Court.
  9. The arguments deployed by the parties on these issues appear more fully below.
  10. Discussion

    Abuse of the process

  11. Sections 41(1) and 42(2) of the CCA 1984 are not quite mirror images of each other. Section 41, in relevant part, states as follows:
  12. (1) If at any stage in proceedings commenced in the County Court or transferred to a County Court under section 40, the High Court thinks it desirable that the proceedings, or any part of them, should be heard and determined in the High Court, it may order the transfer to the High Court of the proceedings or, as the case may be, of that part of them...

    Section 42 is worded slightly differently. It states as follows:

    (2) ... [the County Court] may order the transfer of any proceedings before it to the High Court.
  13. Mr Huckle QC submitted that the jurisdiction of the High Court was a supervisory jurisdiction and that this was a jurisdiction to be exercised broadly having regard to the criterion of desirability. It was not a corrective to or an appeal from case management decisions by the County Court. He said that the wording of section 41 stood in marked contrast to that of section 42, which contained no reference to desirability. Section 42 contained a simple discretion contained in the words "may transfer". This difference in wording reflected the differing roles and jurisdictions of the High Court and the County Court.
  14. Mr Heppinstall's position was that there was no material difference between the two sections and that Mr Taylor's application was the same application that DJ Fine had turned down. Absent some change in circumstances or new grounds, that was impermissible and amounted to an abuse of the process. He relied on the case of Habib Bank AG Zurich v Mindi Investment Ltd, 131 SJ 1455, The Times 4 October 1987. In that case the Bank had started two sets of mortgage possession proceedings which the Defendants sought to transfer from the Willesden County Court to the High Court to be joined up with what were said to be 6 related actions. The Registrar refused to transfer one of the claims and referred the transfer application in the other to HHJ Hill-Smith who heard an appeal against the Registrar's refusal in the one case and the referred application in the other. He dismissed the appeal and the application to transfer. When the possession actions came before the Registrar for the final hearing, the Defendants made a second application to transfer which was refused again and again appealed to HHJ Hill-Smith, who this time granted the applications to transfer. The Court of Appeal found that HHJ Hill-Smith ought to have found that the second applications to transfer were an abuse and should have refused them: per Slade LJ:
  15. "Nevertheless, in my judgment, if a litigant attempts, but after full argument fails, to obtain an order for a transfer and does not appeal the order refusing him a transfer, it will prima facie be an abuse of the process of the court for him to make a second application for a transfer unless circumstances have materially changed since the previous order was made or he is relying on other new grounds or new evidence which he could not reasonably have been expected to adduce before the court hearing the previous application. Correspondingly, in my judgment, it must ordinarily be the duty of the court to refuse a second application in such circumstances unless one or other of the conditions which I have mentioned are satisfied. Any other course, it seems to me, is likely to cause oppression and injustice to the party who successfully opposed the application in the first place."
  16. The only distinction between that case and the present one was that in the Habib Bank case the applications were all to the County Court, whereas here there has been one application to the County Court and a subsequent application to the High Court. But Mr Heppinstall submitted that that made no difference; it was still the same cherry and Mr Taylor was trying to have a second bite of it.
  17. Self-evidently, it is not open to a litigant whose application has been unsuccessful to challenge that outcome by issuing the same application before a different judge. His remedy is to appeal. However, Mr Huckle QC was correct to point out that sections 41 and 42 of the CCA 1984 are separate sections conferring separate jurisdictions and section 41 (the section governing applications to the High Court) specifically states that an application can be made "at any stage in proceedings". Mr Huckle QC was also correct to point out that the High Court exercises a broadly supervisory jurisdiction over the County Court. On the face of it therefore (and perhaps surprisingly) it seems to me that it is open to Mr Taylor to pursue this application and that, strictly speaking, it is not an abuse of the process for him to do so. But the matter does not rest there. The application does precisely replicate the application that was before DJ Fine and there is no change in circumstances. Although it seems to me that I do have the jurisdiction to entertain the application, it is a jurisdiction which I would, in these circumstances, exercise with great circumspection.
  18. There are two reasons for that. The first is the obvious importance of maintaining proper comity and respect between the judges of this court and judges of the Central London County Court. I have no jurisdiction to review or interfere with the decision made by DJ Fine. But that would nevertheless be the practical result of my acceding to the application. The District Judge would justifiably be surprised if I were to do so. The second is that so far as the discretionary grounds for transfer relied upon in this case are concerned DJ Fine and, in due course, HHJ Dight OBE are better placed than me to make and/or to review the decision, (which is a case management decision). The factors to be considered under CPR r 30.3(2) include the convenience of the court for the parties, the value of the claim, the complexity of the issues and the availability of judges with appropriate expertise. All these (and particularly the latter) are matters that the court actually seised of the case will usually be able to assess better than the High Court. Absent some change of circumstances or some factor which I am aware of but which the County Court was not, it is not for me to interfere with DJ Fine's decision. I would only do so if I thought that the decision was clearly and obviously wrong. To put it another way, it seems to me that I must take the same approach or an even stricter approach than that which an appellate court would take to a case management decision. (Once again, I emphasise that I am not sitting as an appellate court and that I refer to the practice of the appellate courts only because it is a useful analogy.) Appeals from such decisions are discouraged because they have the potential to disrupt the orderly progress of a case to its conclusion and because of the very nature of case management decisions. The judges entrusted with case management decisions must exercise a high degree of judicial discretion. That in turn implies that the bar is set high for another court to justify interfering with those decisions. Applying that approach, and subject only to the point that arises on CPR r 30.3(3), my view is that the application in Mr Taylor's case, though not technically an abuse, should be dismissed as a mere replication of the application which DJ Fine has already refused – a decision which was within her judicial discretion and which she was entitled to make.
  19. Although I have a free hand in Mr Bass's case, it is clear that his case stands and falls with that of Mr Taylor. So (again subject to the CPR r 30.3(3) point) I decline to adjudicate on his application. Plainly, DJ Fine would have made the same order in his case. Equally plainly, in the event that HHJ Dight OBE sets aside her order in Mr Taylor's case and transfers it to the High Court, then the same will apply to Mr Bass's case.
  20. It is relevant to mention that applications to this court to transfer up a claim from the County Court are rare. For the reasons given in the previous paragraph, where discretionary grounds are relied upon the application is almost always better made to the County Court. The High Court usually only exercises the power in section 41 to transfer up where there are claims which have been issued and which are properly proceeding in this court and there are connected claims in the County Court. It can make sense for connected claims to be case managed by the same court.
  21. There are two existing Q Fever cases in this court: Eaglesham v MOD HQ14P03585, [2016] EWHC 3011 (QB) and Graveston v MOD HQ14X01901. DJ Fine was aware of these cases. Liability is not in issue in Eaglesham. By contrast, there was an order for a trial on liability in the case of Graveston. That trial was due to be heard in a trial window commencing in May 2016. On 4 May 2016 Wyn Williams J vacated the trial and gave directions for a re-listing in the Michaelmas Term of 2016. But that order was not complied with Mr Kilcoyne (who, though not instructed, had some knowledge of Mr Graveston's case) told me that that delays have arisen due to disclosure issues. Be that as it may, it is hard to avoid the conclusion that Graveston v MOD has not been pursued with the same vigour as the cases I am concerned with (one of which is on the point of being listed before HHJ Baucher for trial). The cases of Eaglesham and Graveston are no basis to transfer up.
  22. CPR r 30.3(3)

  23. As noted above, I am not inhibited from considering the applications so far as they raise matters of which DJ Fine was unaware. There has been some disagreement between the parties as to the material put before her concerning whether it was mandatory to transfer pursuant to CPR r 30.3(3). The transcript of the judgment certainly suggests that the judge was under the impression that national security was not a ground for the assertion of Public Interest Immunity. If so, then that was a misapprehension. It is also apparent that the point was not as fully argued as it has been before me and that at least one significant authority was not placed before her. I have therefore given this aspect of the applications detailed attention. It is not an easy point.
  24. CPR r 30.3(3) is in these terms:
  25. Where in proceedings in the County Court the court considers that there is a real possibility that a party would in the course of the proceedings be required to disclose material the disclosure of which would be damaging to the interests of national security, the court must transfer the proceedings to the High Court.
  26. The "court" referred to in the rule must mean the court considering whether or not to transfer and therefore can be the High Court or the County Court. If it meant only the County Court then (a) that would involve giving the word "court" a different interpretation from that which clearly applies where the same word appears in rr 30.3(1) & (2) and (b) would restrict the ambit of mandatory guidance for no good reason. I am conscious that, in this, I am differing from the views expressed by the Court of Appeal of Northern Ireland; see the case of Cunningham v Chief Constable of the Police Service of Northern Ireland [2016] NIQB 25 to which fuller reference is made below. Nevertheless, that seems to me to be the clear meaning of this part of the rule.
  27. As to the wider meaning of r 30.3(3) Mr Huckle QC submitted that on a straightforward reading, all that was required in order to make transfer to the High Court mandatory was a "real possibility" of a disclosure order in respect of sensitive material. He relied upon the part of the Explanatory Note to the amendment to CPR 30.3 which stated that the new sub-rule (3) had the effect of "… amending rule 30.3 to provide for transfer to the High Court of proceedings in the County Court in which sensitive material is in issue". He submitted that sensitive material was plainly "in issue" in these cases because there were PII certificates which were partially based upon national security and the claimants intended to challenge these. As a fallback position, he submitted that even if rule 30.3(3) was not, or not yet, engaged, the fact that national security featured in disclosure should be taken into account as a discretionary factor which, in combination with the other discretionary factors relied upon, pointed towards transfer up to the High Court. By contrast, Mr Heppinstall's position was that r 30.3(3) was not engaged until a Closed Material Procedure was in prospect. It was only at that stage that, realistically, the MOD could be "required" to disclose sensitive material. Mr Huckle QC's response to that was to observe that the fact that r 30.3(3) would undoubtedly be engaged in a Closed Material Procedure did not mean that it should be interpreted to be limited to that situation. Had the Rules Committee wished so to provide then it could have done so.
  28. Notwithstanding the attractive simplicity of Mr Huckle QC's submission, I have concluded that Mr Heppinstall is correct. My reasons follow. But to summarise:
  29. i) The full legislative context favours a restrictive interpretation of r 30.3(3).

    ii) If the rule were to be given the wide interpretation urged upon me by Mr Huckle QC it would lead to cases being transferred up the High Court quite unnecessarily and without there having been any practical, realistic possibility of sensitive material being required to be disclosed.

    iii) A restrictive interpretation is in line with the decision of the Court of Appeal for Northern Ireland in Cunningham v Chief Constable of the Police Service of Northern Ireland [2016] NIQB 25 – a decision which, though not binding on English courts, is entitled to a high degree of respect.

    The legislative context

  30. CPR r 30.3(3) provision was inserted by rule 5 of the Civil Procedure (Amendment No. 5) Rules 2013/1571 ("the Amendment Rules") with effect from 27 June 2013. The preamble to the Amendment Rules identifies that they were made in exercise of powers conferred on the Lord Chancellor by paragraph 3 of Schedule 3 to the Justice and Security Act 2013 (the JSA 2013"). The Explanatory Note to the Amendment Rules begins as follows:
  31. "These Rules amend the Civil Procedure Rules 1998 ("the CPR") for the purpose of implementing Part 2 of the Justice and Security Act 2013 ("the 2013 Act") by—
    — amending rule 1.2 (application by the court of the overriding objective), so that it is subject to rule 82.2 (modification to the overriding objective);
    — amending rule 12.3 to ensure that judgment in default is not entered where the reason for a defence not having been served is that the process of considering whether a declaration under section 6 of the 2013 Act should be applied for or made is still under way;
    — amending rule 30.3 to provide for transfer to the High Court of proceedings in the County Court in which sensitive material is in issue; and
    — inserting a new Part 82 containing rules about proceedings in which sensitive material is in issue and it is necessary to ensure that such material is not disclosed where such disclosure would be damaging to the interests of national security. This includes modification of the application of other Parts of the CPR for the purposes of those proceedings)."
  32. It is clear that the transfer provision introduced at CPR r 30.3(3) was part of the consequential amendments to the CPR brought about when the CPR Part 82 was introduced to give effect to the Closed Material Procedure provisions contained in Part 2 of the JSA 2013. A mandatory transfer provision would be required because, by section 6(1) of the JSA 2013, a declaration permitting a CMP is to be made by "the court seised of relevant civil proceedings". In turn, section 6(11) defines relevant civil proceedings as "any proceedings (other than proceedings in a criminal cause of matter) before (a) the High Court, (b) the Court of Appeal, (c) the Court of Session, or (d) the Supreme Court." Thus, since the County Court does not have jurisdiction to make a Closed Material Procedure declaration, any case in which this is anticipated would have to be transferred to the High Court.
  33. But there is nothing in the provisions of the JSA 2013 which indicates any curtailment of the scope of or venue for claims to Public Interest Immunity by the entry into force of the 2013 Act. On the contrary, section 6(7) of the JSA requires consideration of PII as a precondition to seeking a Closed Material Procedure declaration; and section 14(2)(b) provides that:
  34. "Nothing in sections 6 to 13 and this section (or in any provision made by virtue of them)— […] (b) affects the common law rules as to the withholding, on grounds of public interest immunity, of any material in any proceedings […]"
  35. Accordingly, the provisions of the CPR which give effect to the common law PII jurisdiction remain unchanged. In particular, CPR r 31.19 (which provides for PII applications to be made/challenged, without distinguishing between the grounds upon which PII might be sought) has remained in the same terms since 26 April 1999. Nor has the JSA 2013 affected the availability of PII in matters other than civil proceedings. The scope and application of PII in the criminal and coroners' courts remains the same. On the face of it, the legislative background supports the propositions that (a) CPR 30.3(3) was introduced in order to facilitate transfer to the High Court in Closed Material Procedure cases and that (b) it does not restrict the availability of PII on national security grounds being sought and adjudicated upon in the County Court (as, indeed, frequently happens).
  36. The utility of routine transfers to the High Court where sensitive material is in issue

  37. The practical reality is that the court does not and, in fact, cannot order the disclosure of sensitive material unless and until there is a Closed Material Procedure. (Even then, disclosure would be to a Special Advocate acting for the claimant and not to the claimant himself.) These claims are a very long way removed from a Closed Material Procedure. As Mr Heppinstall pointed out, the starting gun has not even gone off, that is to say, the claimants have yet not even made an application under CPR r 31.19(5) to challenge the PII certificates. It would only be if such a challenge was made and upheld that a Closed Material Procedure might be contemplated. In the meantime, there could not have been an order against the MOD to disclose the relevant material because this is precisely what CPR r 82.2(2) prevents. This rule modifies the overriding objective, stating that that objective and "so far as possible any other rule must be read and given effect in a way which is compatible with the duty set out in paragraph (2)". Paragraph (2) provides that "the court must ensure that information is not disclosed in a way which would be damaging to the interests of national security" (my emphasis). Thus, a judge's refusal to uphold a claim by the MOD to withhold disclosure on PII grounds would not in fact give rise to any "requirement" within the meaning of r 30.3(3) to disclose the sensitive material. The judge refusing to uphold the claim to Public Interest Immunity would not and could not make such an order because the mandatory wording of CPR r 82.2(2) would prevent him or her from doing so. Given that this is the case, if every claim in which the State asserted public interest immunity on national security grounds had to be transferred to the High Court, that would burden the High Court with a large number of small claims – for which the processes of the High Court are neither necessary nor suitable – to no real purpose.
  38. Cunningham v Chief Constable of the Police Service of Northern Ireland

  39. These issues have been considered by the courts in Northern Ireland – a jurisdiction where PII claims on grounds of national security are frequently made. In Cunningham v Chief Constable of the Police Service of Northern Ireland [2016] NIQB 25 & [2016] NICA 58 the claimant claimed in respect of what he alleged was his unlawful arrest and detention on 22 August 2011. The claim was met with the defence that the arrest was based upon intelligence information that he was a terrorist and had been involved in a kidnapping (a so called "tiger kidnapping") on 17 and 18 August 2011. At the disclosure stage of the proceedings, the Parliamentary Under-Secretary of State for Northern Ireland issued a PII certificate on grounds of national security. He sought to redact 10 documents. His Honour Judge Devlin upheld the certificate. The claimant appealed on the ground that Order 78 rule 1A of the Rules of Court for Northern Ireland (in identical form to CPR r 30.3(3)) prevented Judge Devlin from even embarking on that exercise. He should, so it was said, have transferred the case to the High Court. The appeal came before Colton J. He gave a purposive interpretation to the rule, stating at paragraph 25 of the decision as follows:
  40. "In this particular case the purpose is clear, namely to provide rules for a procedure for a closed material hearing in accordance with Section 6 of the Justice and Security Act 2013. This is self-evident from the enabling legislation referred to in the pre-amble to the rule [and] from the language of the rules itself which adopts the identical wording of the 2013 Act …"
  41. He went on to say that the interpretation urged upon him by the claimant would result in an "inconvenient, anomalous or illogical consequence" in that PII applications were regularly raised in low-value claims in the County Court and the administration of justice in Northern Ireland would not be well served if all such applications had to be transferred to the High Court. He concluded that the rule "should be interpreted so that its application is confined to closed material procedure applications under the 2013 Act". He said that he considered that it did not prohibit or exclude a County Court Judge from hearing or determining a PII application, even where the issue was national security.
  42. The claimant appealed to the Court of Appeal of Northern Ireland. That court dismissed the appeal. But they adopted a more nuanced approach to the interpretation of the rule. In effect, they said that the County Court could embark upon hearing a PII application; but if there came a time when it appeared that there was a real possibility that the claim to Public Interest Immunity might not be upheld then, at that point, the case had to be transferred to the High Court. The reasoning is set out at paragraphs 30 and 31 of the decision:
  43. "30 Order 78 Rule 1A concerns County Court proceedings where the court considers there is a real possibility of disclosure that would be damaging to national security. The court must transfer the proceedings to the High Court. The threshold is the "real possibility" of disclosure. The threshold is not the raising of a claim of public interest by a party with control of the documents nor is it the rejection by the court of the public interest claim. It is an intermediate stage of "real possibility" of disclosure. That requires an assessment of the claim for disclosure and the claim for public interest and the prospects for success or rejection of the competing claims. The "real possibility" of disclosure may not be immediately apparent but may emerge as the application for the disclosure of the documents progresses. The court hearing the application may never consider that disclosure is a "real possibility". In that event the public interest claim will prevail, the application will be dismissed and there will be no disclosure. The County Court will proceed to hear the claim in the absence of the documents. On the other hand there may come the point at which the court considers that disclosure is a "real possibility" and the court must transfer the proceedings. In that event the court will not reach a decision on disclosure but will transfer the proceedings. The prospect of the closed material procedure will come into play.
    31 Part II of the 2013 Act is concerned with the closed material procedure and Norwich Pharmacal and related jurisdictions. The rule making provisions in the 2013 Act are concerned with the operation of those new provisions. Order 78 Rule 1A is concerned with the related issue of the transfer of County Court proceedings. The new provisions do not remove public interest immunity claims from the County Court. The amendment to the Rules provides for the transfer of proceedings to the High Court when the threshold of the "real possibility" of disclosure has been reached."
  44. Whether the test put forward by Colton J or that put forward by the Court of Appeal is applied, the outcome in the case before me is the same. However, I will say that the reasoning of Colton J is persuasive and, in my view, more readily applicable to this jurisdiction than that of the Court of Appeal. There are two difficulties with the reasoning of the Court of Appeal. The first is practical. It would be somewhat unsatisfactory for a judge of the County Court to embark upon a PII application which (s)he could only see through to a conclusion if it remained clear and obvious throughout that the claim to PII was to be upheld. To put it another way, the judge would be placed in the awkward and artificial situation of having to maintain a constant review of the merits of the application, not, or not primarily, in order to resolve it, but for the purpose of deciding whether to break off and transfer it up to the High Court. Such a process would be unlikely to gain the favour of the judges or, for that matter, the parties concerned. The second objection is that the reasoning of the Court of Appeal assumes that the outcome of an unsuccessful PII application would be a requirement for the disclosure of the relevant material. That is not the case in this jurisdiction because of the mandatory terms of CPR r 82.2(2).
  45. Conclusion

  46. For the reasons set out above, I have come to the conclusion that CPR r 30.3(3) does not mandate transfer to the High Court unless and until there is to be a Closed Material Procedure under section 6 of the JSA 2013. That is not, or certainly not yet, the case here. The rule is not an obstacle to a judge of the County Court hearing or determining a PII application, even where the claim to PII is based upon national security grounds. If a PII application is particularly heavy and complex or if the national security issues raised by the application are of unusual sensitivity, then it remains open to the judge to make a discretionary transfer of the case to the High Court under CPR r 30.2. In such a case, any views about transfer expressed by the arm of the state that is seeking Public Interest Immunity would be entitled to careful consideration.
  47. I have not overlooked the fact that Mr Huckle QC's fallback position was that if I was against him on the question of mandatory transfer under CPR r 30.3(3) then this was still a case for discretionary transfer under r 30.2 on the grounds that the intended PII application concerned national security. As indicated in the preceding paragraph, this is a question to be decided according to the gravity, difficulty and sensitivity of the issues so raised. I accept that there might be cases where an application on these grounds could be made directly to the High Court under section 41. But such cases will be rare and, on present information, these claims are not amongst them. The documents which the Ministry of Defence seeks to redact in these claims are few in number and the redactions themselves are not extensive. The Ministry does not seek a transfer. The PII applications seem to me to be suitable to be dealt with in the County Court.
  48. I refuse the applications.


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